FOI Oklahoma

Founded in 1990, FOI Oklahoma is a statewide organization actively supporting those organizations and individuals working to open records or provide access to meetings illegally closed.
FOI Oklahoma doesn't just believe in the right of access: it acts to help guarantee that right. Visit us at www.foioklahoma.org.
The opinions expressed in this blog are those of the commentators and do not necessarily represent the position of FOI Oklahoma Inc., its staff, or its board of directors.

Saturday, September 14, 2013

Tulsa officials changed course Friday, releasing 911 recordings of two calls made following a state trooper-involved fatal shooting at a local motel, the Tulsa World reported today.

Police Chief Chuck Jordan and the city's Legal Department indicated that the decision to release 911 recordings is discretionary, not because the Open Records Act requires it.

"Due to the fact that it was a state issue, I spent much time in deliberation over the release of the recordings," Jordan said. "Tulsa Police Department remains committed to transparency and in the public interest we are now releasing the 911 recordings as requested by the Tulsa World."

The newspaper's editorial writers understandably said they are "puzzle[d] over the idea that there might be less reason for public access to public records because of 'a state issue.'"

For the reasons I gave Thursday, I disagree that Jordan can pick and choose which 911 calls to make public. But at least he decided to release these recordings, thereby avoiding an extended fight with the newspaper.

However, that wasn't the only open government problem at Tulsa City Hall.

The Tulsa World reported this morning that more than a month after the request, city officials haven't released "emails that could settle questions over how much Mayor Dewey Bartlett and his administration knew about problems in the city's green-waste program."

The newspaper asked for emails containing the phrase "green waste" sent or received in the last year by six city officials, including Bartlett, City Manager Jim Twombly and the city's lead trash managers.

City spokeswoman Michelle Allen told the newspaper that the city's Legal Department is reviewing each of the some 2,500 emails and attachments "for compliance (with the Open Records Act) and appropriate content to fulfilling the request."

According to the newspaper, Bartlett said the emails must be checked manually before being released because "we have a responsibility to the public to give the correct information and not disclose info that is personal in nature."

In 2006, then-Attorney General Drew Edmondson told The Oklahoman that an OSU policy requiring all public records requests to be cleared by school attorneys might violate the Open Records Act by not providing "prompt and reasonable" access.

"If that policy were challenged, then a judge would have to determine whether the circumstances within that particular agency are not only prudent but necessary," Edmondson said. "I would say that it is not typical and typically would not be found to be reasonable."

Under the Open Records Act, public bodies are required to "designate certain employees who are authorized to release records . . . for inspection, copying, or mechanical reproduction. At least one person shall be available at all times to release records during the regular business hours of the public body."

In a 2005 open records training video for police, Edmondson said:

That person should have a working familiarity with the Open Records Act and be able to respond to citizen inquiries for records. And that would mean in most instances, if not all instances, they should not have to ask someone else for permission or authority.

He acknowledged that the designated person could encounter "an unusual request" requiring the advice of an attorney.

"But that should be a rare exception," Edmondson said. "By and large, the person at the desk who is supposed to respond to open records requests should be able to do so without consultation with anybody else."

Tulsa city attorneys are reviewing records compiled by other employees. That adds an unnecessary -- and perhaps illegal -- delay in releasing public documents.

It also adds to the impression of a city administration that doesn't genuinely believe in transparent government -- a perception that Bartlett cannot afford eight weeks before he faces re-election.

The opinions expressed in this blog are those of the commentators and do not necessarily represent the position of FOI Oklahoma Inc., its staff, or its board of directors. Differing interpretations of open government law and policy are welcome.

Thursday, September 12, 2013

The city of Tulsa's Legal Department won't release recordings of two calls made to police following a state trooper-involved fatal shooting at a local motel, the Tulsa World reported today.

The newspaper noted that the city has released at least seven other 911 recordings since 2010.

And after Tulsa's municipal employees union sued the city in June for access to a 911 recording, a city spokeswoman told the Tulsa World that the city considered 911 recordings to be public records and released them regularly.

But this week, Assistant City Attorney Shelton Benedict told the newspaper, "There's nothing in the (state) Open Records Act that says produce audio, and if you've got it in the past, my guess is that that would fall under the discretionary part."

The Open Records Act doesn't define radio logs. However, an attorney general opinion interpreting the statute's previous version indicated that radio logs include "any recorded electronic transmissions made between the police dispatcher(s) and other parties." (1984 OK AG 119, ¶ 22)

"[R]ecorded electronic transactions with the police department are subject to the Open Records Act," said the opinion, relying upon a Wyoming case and upon Oklahoma cases broadly interpreting the term "record." (Id. ¶ 28)

All documents, including but not limited to, any book, paper, photograph (including mugshots), microfilm, computer tape, disk, record, sound recording, film recording, video recording, or other material regardless of physical form or characteristic, created by, received by, under the authority of, or coming into the custody, control, or possession of the Tulsa Police Department.

Such recordings are routinely released by law enforcement agencies in Oklahoma. These records should be open to the public because they can reveal serious problems in the 911 system.

In June, for example, Delaware County residents "expressed outrage over slow response times and inadequate training by 911 dispatchers in incidents where several people, including three children, have died in the past nine months," the Tulsa World reported.

Most of the anger centered on the drowning death of a 7-year-old girl at the Eucha State Park pool. According to the media reports, the 911 dispatcher can be heard making several blunders during the nearly six-minute call, including misdialing the telephone number for the Jay Police Department. The sheriff requested an outside investigation into the 911 call.

Residents also were angry over the 911 call related to the death of a 3-year-old in a house fire near Lakemont Shore.

"The (911) dispatcher told her (the mother) to hang up and call the sheriff's office,” a resident told county commissioners. "Who has time to look through a telephone book?"

The opinions expressed in this blog are those of the commentators and do not necessarily represent the position of FOI Oklahoma Inc., its staff, or its board of directors. Differing interpretations of open government law and policy are welcome.

But the resignation letters aren't part of the "internal personnel investigations." They are submitted by the employees.

The statute says, "All personnel records not specifically falling within the exceptions provided in subsection A of this section shall be available for public inspection and copying...." (§ 24A.7(B))

Because the resignation letters aren't specifically exempted, they must be available for public inspection and copying.

The statute also makes public "the records of any final disciplinary action resulting in loss of pay, suspension, demotion of position, or termination." (§ 24A.7(B)(4))

A 2009 attorney general opinion reiterated that once the investigation is complete and a final disciplinary action occurs, "the record(s) indicating that action must be available for public inspection and copying." (2009 OK AG 33, ¶ 29)

So if the police departments are correct that the resignation letters are part of the internal personnel investigations, then the resignation letters are the record indicating the final action and must be made available for public inspection and copying.

Or as a subsequent attorney general opinion explained, "The intent of the Act requires that questions of doubt as to the accessibility of government records be resolved in favor of access." (1988 OK AG 35, ¶ 3)

Interpreting the statute so that resignation letters of government employees are secret is a stretch that wrongly favors exemption over disclosure.

The opinions expressed in this blog are those of the commentators and do not necessarily represent the position of FOI Oklahoma Inc., its staff, or its board of directors. Differing interpretations of open government law and policy are welcome.

Sunday, August 18, 2013

Okfuskee County District Attorney Max Cook likely will ask Attorney General Scott Pruitt to investigate a secret budget meeting of the County Commission or appoint another prosecutor to do so, Cook told the Okemah News Leader late last week.

"Since it is a pending case and I am not suppose to comment on a pending case, I can say very little," Cook told the newspaper.

"It is very likely because of ethics for prosecutors in the state of Oklahoma, it will require that I disqualify my office. I will ask the attorney general to handle the matter or appoint another district attorney."

The three county commissioners -- Chairman Danny Wilson, Vice Chairman Bruce Smith and Max Henry -- did not provide public notice or post an agenda for a budget session with the county budget writer and County Clerk Dianne Flanders this past Monday.

The Open Meeting Act requires public notice and a posted meeting agenda when the majority of a public body even discusses public business, as this blog explained Wednesday.

The commissioners conducted the session after adjourning from their regular meeting. Okemah News Leader reporter Shakara Shepard had left but saw the county budget writer, Dan Hall, walking into the meeting room. She followed him back into the room.

According the newspaper's account of the session, the commissioners did more than discuss the county budget. The newspaper reported:

The commissioners made several decisions during the unposted meeting regarding various amounts of taxpayer money. Amounts were added and amounts were subtracted during the discussion. Some offices requested their department receive more money for the fiscal year. Travel expenses were added back into the budget as well.

Hall told the commissioners he would finish the budget and send the final copy to them for their approval, according to the newspaper.

Violating the Open Meeting Act is a misdemeanor punishable by up to $500 and one year in the county jail. (OKLA. STAT. tit. 25, § 314))

The opinions expressed in this blog are those of the commentators and do not necessarily represent the position of FOI Oklahoma Inc., its staff, or its board of directors. Differing interpretations of open government law and policy are welcome.

Wednesday, August 14, 2013

The Okfuskee County Commission meeting had adjourned Monday and a newspaper reporter had left when she saw the county's budget writer Dan Hall walking into the meeting room, the Okemah News Leader reported today.

The reporter returned to the room and saw the three commissioners -- Chairman Danny Wilson, Vice Chairman Bruce Smith and Max Henry -- and County Clerk Dianne Flanders discussing the 2013-14 budget with Hall, the newspaper reported.

Hall gave the commissioners a cash flow/cash funds report, told them that this year's budget is better than last year's, and said the sales tax increased about $100,000, according to the newspaper.

And this wasn't just a discussion, the newspaper reported, explaining:

The commissioners made several decisions during the unposted meeting regarding various amounts of taxpayer money. Amounts were added and amounts were subtracted during the discussion. Some offices requested their department receive more money for the fiscal year. Travel expenses were added back into the budget as well.

Hall told the commissioners he would finish the budget and send the final copy to them for their approval, according to the newspaper.

All that occurred with no public notice of the meeting, much less a posted agenda, wrote the newspaper's editor, Lynn Thompson.

If the newspaper's account is correct, Wilson, Smith and Henry held a secret meeting on the county budget in blatant violation of the state's Open Meeting Act.

The Open Meeting Act defines a meeting as "the conducting of business of a public body by a majority of its members being personally together or ... together pursuant to a videoconference." A majority of a public body may gather informally "when no business of the public body is discussed." (OKLA. STAT. tit. 25, § 304(2))(emphasis added)

The Open Meeting Act requires public notice and a meeting agenda when the majority of a public body even discusses public business, much less makes decisions.

Business should be assumed to include the entire decision-making process, including deliberation, decision or formal action. Clearly, the Legislature must have intended for the discussion stage to be covered by the Open Meeting Act. Therefore, when members of a public body meet among themselves to discus the appropriation of funds, the requirements of the Open Meeting Act must be met. (1982 OK AG 212, ¶ 3)

It is clear that, when members of a public body meet informally and begin discussing matters affecting the public body, regardless of whether or not there is any motive to evade the Open Meeting Act, the discussion falls under the auspices of the Open Meeting Act. (¶ 11)

In 2012, Attorney General Scott Pruitt said, "A public body is thus engaged in the 'conduct of business' when a majority of the members are considering discrete proposals or specific matters that are within the agency's jurisdiction." (2012 OK AG 24, ¶ 10)

Pruitt noted that opinions by his predecessors "do not limit the types of discussion that fall under the Act to those that 'effectively predetermine official actions,' and speak in broader terms about discussion, deliberation, and voting as all being the 'conduct of business.'" (¶ 9)

"As a result," Pruitt reasoned, "the state law term 'conduct of business' might well include discussions in which the members of the public body are considering information that will aid them in their decision-making, even though those discussions do not necessarily 'effectively predetermine their official actions' or cause the members to form a reasonably firm position on the matter at that moment. (¶ 9)

The bottom line, as then-Attorney General Drew Edmondson said, "A governmental body must operate with such openness that the citizenry is informed of its activities." (2000 OK AG 7, ¶ 30)

So why is public decision-making important?

The public policy stated in the Open Meeting Act is "to encourage and facilitate an informed citizenry's understanding of the governmental processes and governmental problems." (OKLA. STAT. tit. 25, § 302)

In 1978, the Oklahoma Supreme Court said, "If an informed citizenry is to meaningfully participate in government or at least understand why government acts affecting their daily lives are taken, the process of decision making as well as the end results must be conducted in full view of the governed." (Oklahoma Ass'n of Mun. Attys v. State, 1978 OK 59, ¶ 10)

And as the 1982 attorney general opinion said, "An open deliberative process reveals rejected alternatives about which the public might not know if access to study sessions and deliberative meetings were denied." (1982 OK AG 212, ¶ 5)

Thompson noted that the Open Meeting Act "is not a new law that has just gone into effect."

"This is a 30-plus year old Act that has been in effect and that all elected officials should not be unaware or ignorant of the Act," he wrote.

The Open Meeting Act requires public notice and a meeting agenda when the majority of a public body discusses public business. The county budget is certainly the public’s business.

It's a blatant violation of the Open Meeting Act for a county commission to discuss the county budget with no public notice of the meeting. Any elected official who has so little respect for the people and the law should be prosecuted and sent to jail.

Violating the Open Meeting Act is a misdemeanor punishable by up to $500 and one year in the county jail. (OKLA. STAT. tit. 25, § 314))

In 1981, the state Court of Criminal Appeals upheld the convictions of the city of Medicine Park's board of trustees for failing to post meeting agendas. "Posting is required even for the most typical meeting," the court said. (Hillary v. State, 1981 OK CR 78, ¶ 6)

In 2002, three of Nowata's five city commissioners pleaded no contest to violating the Open Meeting Act by discussing city business at a restaurant. A police informant recorded them deciding which of the three would serve as mayor and as city treasurer and discussing "the police department budget … cutting city jobs," and disciplining the city manager.

What will District Attorney David Max Cook do about the Okfuskee County commissioners meeting secretly to decide the county budget?

The Court of Civil Appeals said in 1981 that it would not wink at Open Meeting Act violations, explaining:

[F]or to wink at violations in one case is to invite them in another. The Oklahoma Legislature, elected voice of the people of this state, mandated open meetings, including observance of the notice and agenda provisions. ... [W]ithout vigorous enforcement in the courts, laudable legislation is reduced to "mere words." Well, not this laudable legislation, not in this Court, not in this case. The Legislature has said, "Let the sun shine on government." (Matter of Order Declaring Annexation, Etc., 1981 OK CIV APP 57,¶ 31)

Let's hope Cook refuses to wink at the blatant violation in Okfuskee County. Otherwise, there's not much point in having an Open Meeting Act.

The opinions expressed in this blog are those of the commentators and do not necessarily represent the position of FOI Oklahoma Inc., its staff, or its board of directors. Differing interpretations of open government law and policy are welcome.

Wednesday, August 7, 2013

Owasso Councilman Patrick Ross sued the town on Tuesday in an attempt to make public an investigative report that led to the resignation of the city manager.

Ross' lawsuit, filed in Tulsa County, alleges a number of violations of the state's open government laws, including that the City Council did not vote publicly to keep that report secret, not pursue criminal prosecution of then-City Manager Rodney Ray, and whether to fire him.

The lawsuit asks Judge Daman Cantrell to declare invalid the city's resignation agreement with Ray and declare the investigative report to be a public record.

Chris Camp, Ross' attorney, argues that the City Council also violated the Open Meeting Act during meetings on May 24, June 18, June 21 and June 25 by conducting executive sessions "for the purpose of discussing personnel matters relating to the Office of the City Manager."

As noted by this blog on July 12, a state attorney general opinion requires that agenda items for an executive session under the personnel exemption include either the name of the person or the person's position if it "is so unique as to allow adequate identification." (1997 OK AG 61, ¶ 5)

The opinion agreed that placing the person's name or unique title on the agenda would lessen the confidentiality. Still, it added:

We note that for a public body to convene in executive session to discuss employment matters is not mandatory; it is simply 'permitted.' While on the other hand a public body's duty to specify on the agenda all matters to be undertaken in a meeting is absolute. (Id. ¶ 4)

As this blog did, Camp argues that listing "Office of the City Manager" isn't listing a name or unique title and is so broad that the council could have discussed any employee of that office. He notes that the title of city manager and the Office of the City Manager aren't synonymous, interchangeable terms under the city's charter and ordinances.

The executive sessions focused solely on Ray, the lawsuit states.

The council also violated the Open Meeting Act by not keeping minutes of its executive sessions on those dates, the lawsuit states.

Ross' lawsuit says council members were permitted to read the investigator's report only during the June 21 executive session. They weren't allowed to keep copies so the city "could respond 'truthfully' that no member of its staff or the City Council possessed a copy of the report," according to the lawsuit.

During the June 21 executive session, City Attorney Julie Lombardi told the council that the report was considered a confidential personnel record.

During that executive session, the council also discussed whether to seek criminal prosecution of Ray and a proposed resignation agreement was presented by Lombardi and discussed, according to the lawsuit.

It notes that neither topic was listed on the meeting agenda and the council didn't vote publicly to designate the report confidential.

The lawsuit points out that following that meeting, Lombardi told the Tulsa World that the investigator had presented his finding orally and that neither the city nor the council had received a written report from the investigator.

During the June 25 executive session, the lawsuit states, the council discussed a counter-proposal from Ray regarding his resignation agreement even though that topic was listed under a separate agenda item for public discussion.

Ross contends that only a vote of the council could deem the investigative report to be a confidential personnel record. Council member Jeri Moberly told the Owasso Reporter last month that the council had voted to do so on June 25 when it publicly voted to accept the resignation agreement. But the lawsuit notes that the resignation agreement didn't mention the investigative report and conceded that the agreement itself was a public record.

Ross' lawsuit also contends that the council violated the Open Meeting Act by conducting confidential communications with its attorney during the executive sessions even though that exemption wasn't listed on the agendas and the council didn't determine prior to going into the executive sessions that disclosure of its communication with the city attorney would "seriously impair the ability" of the council to conduct the investigation.

The lawsuit contends that the report is "an internal affairs investigation of a City office" and not an exempted personnel record. Placing the investigative report into Ray's personnel file did not exempt it from disclosure under the Open Records Act, the lawsuit argues. It also also notes that the report isn't actually in Ray's personnel file.

Even if the judge deems it a personnel record, the lawsuit argues, the report should be public as a "final action resulting in loss of pay ... or termination."

The opinions expressed in this blog are those of the commentators and do not necessarily represent the position of FOI Oklahoma Inc., its staff, or its board of directors. Differing interpretations of open government law and policy are welcome.

Follow by Email

Translate

About Me

When individuals or organizations in Oklahoma believe that their access rights are threatened, they turn to FOI Oklahoma for help. We contact those who are limiting freedom of access to encourage them to comply with the laws.
We also conduct workshops for educators, students, government officials, attorneys and the general public. Our Web site provides a number of resources, including a model letter for records requests and primers on Oklahoma's open meeting and records laws.
Our services and resources are made possible by paid memberships and donations. Interested in joining? Visit www.foioklahoma.org.
The opinions expressed in this blog are those of the commentators and do not necessarily represent the position of FOI Oklahoma Inc., its staff, or its board of directors. Differing interpretations of open government law and policy are welcome.